READ: DOJ Says Judge’s Moves In Flynn Case Violate Constitution

on February 4, 2014 in Washington, DC.
Lt. Gen. Michael Flynn, director of the Defense Intelligence Agency, testifies during a hearing before the House Select Intelligence Committee on February 4, 2014. (Photo by Alex Wong/Getty Images)
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The Justice Department accused a federal judge of violating the Constitution by failing to accept its motion to drop charges against Michael Flynn, according to a Monday court filing.

The DOJ made the argument in a brief filed in the D.C. Circuit Court of Appeals, arguing that District Judge Emmett Sullivan had erred in appointing a former federal judge to argue against the government’s motion to drop the charges against Flynn.

“The power to prosecute belongs to the Executive, not the Judiciary,” the DOJ wrote, arguing that the federal rules of criminal procedure required Sullivan “to grant the government’s motion to dismiss the indictment with prejudice because that motion was unopposed.”

“At a minimum, it required the court to grant the motion under the circumstances of this case, notwithstanding petitioner’s guilty plea,” the filing reads.

The Justice Department’s filing, which was submitted by U.S. Solicitor General Noel Francisco, was an escalation in the battle of what should come next in Flynn’s case now that the Justice Department wants it dropped.

In his own filing with the appeals court earlier Monday, Sullivan said the circumstances around the Justice Department’s reversal were “unprecedented,” while calling Flynn’s own walkback of his plea “unusual.” Before the Justice Department sought to drop the case last month, it had repeatedly defended the prosecution in court, even after Flynn himself signaled that he would try to back out of his 2017 plea deal.

The dispute is now in front of the appeals court after Flynn asked the court to intervene in the matter and order that his case be dismissed. The appeals court invited the Justice Department to weigh in, while ordering that Sullivan submit his own response to Flynn’s request that the appeals court intervene. Sullivan argued Monday that it was too early in the process for the appeals court to get involved.

The Justice Department’s Monday filing went through the reasons it was now seeking to dismiss Flynn’s case, which focus on a new DOJ claim that the false statements Flynn made to the FBI in early 2017 were not material to the FBI’s Russia probe.

“Simply put, the district court has no authority to reject the Executive’s conclusion that those reasons justify a dismissal of the charges,” the Justice Department argued.

The Department argued that the federal rules of criminal procedure do not allow the judge or his appointed amicus to “conduct evidentiary proceedings based on speculation about the government’s motives.”

The Justice Department claimed it “makes no legal difference” that Flynn was asking the appeals court to intervene at this stage, rather than after the judge made a decision on the motion to dismiss.

“Indeed, the threat of intrusive judicial proceedings and criminal charges — and potentially even evidentiary proceedings if the court-appointed amicus has his way — only makes the separation-of-powers problem worse,” the Justice Department said. “The district court plans to subject the Executive’s enforcement decision to extensive judicial inquiry, scrutiny, oversight, and involvement. Under the Supreme Court’s and this Court’s precedents, it is clear and indisputable that the district court has no authority to embark on that course.”

Read the brief here:

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